United States v. Louisiana – Oral Argument – October 14, 1959 (Part 1)

Media for United States v. Louisiana

Audio Transcription for Oral Argument – October 12, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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Earl Warren:

Number 10, Original, United States of America, Plaintiff, versus the States of Louisiana, Texas, Mississippi, Alabama and Florida.

Hugo L. Black:

Solicitor General.

J. Lee Rankin:

Mr. Justice Black, may it please the Court.

I shall try to stay away from any repetition of matters that we have covered in connection with these cases and deal with the problems in regard to Louisiana.

I think it should be kept in mind that Louisiana was created like Alabama and Mississippi out of territories and they were creatures of the United States and as such the problems in regard to that are different than they would — they are as to an independent country like Texas was prior to that time.

The claim was made that the boundary of Texas — excuse me, of Louisiana was provided for as beginning three leagues in the Gulf at the Sabine River.

That claim was made in their briefs and also in argument and we find no justification historically or in anyways just said that their boundary began at a point three leagues in the Gulf at the mouth of the River Sabine.

At the time of the admission.

J. Lee Rankin:

That’s right.

Now, the Act just didn’t provide for that.

They also refer to the Treaty of 1819 with Spain.

You will recall that we have been over the fact that the Treaty of Spain of 1819 was used by Texas in connection with the Treaty that made when she was an independent State as Republic of Texas in the agreement between the United States and Texas as to what her boundary would be.

It was used as a basis for the — both the same terms were used in the Treaty with Mexico in regard to boundary.

And on page 185 of the Government’s brief, we set out the language of that Treaty in Article II, words indented defining the boundary between the United States and the area then belong to Spain because it was part of Mexico in 1819.

The boundary line between the two countries, west of Mississippi, shall begin on the Gulf of Mexico at the mouth of the River Sabine in the sea.

There’s nothing about three leagues at all continuing north along the western bank of that river.

Well, that’s just what the parties agreed at that time and they carried it down to the treaties that I have just described.

Now, below on that page, close to the bottom, is the exact language that was used in connection with this survey that was described by counsel for Louisiana, Mr. Sachse in his argument.

And he said, “Well, of course, the surveyor couldn’t walk on the water and put some marker out there.”

And so, he just didn’t say anything about the three leagues in the sea that they were to have when he was marked the place that the boundary would start.

But under all practice of — of surveyor, certainly, it — he agreed he couldn’t walk on the sea and he could have put up a marker of course but he wouldn’t have to do that.

He could’ve said in the language of his minutes like is often done by surveyors when they can’t reach a certain point that if so many feet or miles or somewhat something else from this particular marker that the boundary starts.

But he said the — boundary convention, what they agreed on was reestablish the point of the beginning of the boundary, the beginning of the boundary between the United States and the Republic of Texas at the mouth on the western bank of the junction of the River Sabine with the sea.

There’s nothing about three leagues if they ever put in to it at all.

And certainly, it would seem reasonable that if they want to extend to three leagues, and if you recall that the convention provided that when they agreed on this boundary, it would be the same as though it was written in there as a part of the original agreement.

But they said, “That was where the boundary began, at the sea.”

Now, on regard to the same problem you recall, counsel said that their boundary was conceived the sort of an extension of Texas boundary.

So, they argued Texas boundary was three leagues validly such as a part of the argument of Louisiana.

You recall that during the argument of Texas case, they referred to the instructions to Mr. Trist who negotiated in regard to the Treaty of Guadalupe Hidalgo and said that he was instructed to follow the statute of Texas of 1836.

Now, that is on page 102 of the Texas brief, the yellow brief.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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J. Lee Rankin:

And they set out at the bottom of the page there and they’ve indented it the language as to the instructions of Trist.

And I’m sorry that I was so late about getting this dug out because it impressed me that in going over and reading it again that that was an important consideration if this man who was to negotiate the treaty between Mexico and the United States that became Guadalupe Hidalgo was instructed to follow this particular statute and that’s all there was to it that it was a major importance.

And they cited, as you will note, in the footnote certain papers of Mr. Trist that are in the library of Congress.

So, I ask one — some of our staff to dig that out and see what — what the fact was in regard to it.

And now, let’s see what the fact was, what the instructions really were.

The notes there — and this is not in our briefs.

So, if you care to examine it further, you’ll have to make a — a note of it.

But I’ll — it’s all revealed here if you check back against the papers that they cite in the notes.

I’m sorry that there is 211 pages of manuscript that’s in longhand that Mr. Trist filed there as to the justifications for his action.

But he incorporates in it.

And there is no question about it.

The instructions to Mr. Sidwell as to what should be done in regard to the boundary.

William J. Brennan, Jr.:

Now, Mr. Solicitor, are we on the page to which was cited here 62071 in the Texas brief footnote?

J. Lee Rankin:

Well, it —

William J. Brennan, Jr.:

What you’re going to read us, I mean?

J. Lee Rankin:

62071.

William J. Brennan, Jr.:

Well, apparently, volume 33 miscellaneous page 62071.

J. Lee Rankin:

Yes.

That’s — that’s where this is without —

William J. Brennan, Jr.:

You’re reading from that page?

J. Lee Rankin:

Yes, I will give you what’s on that —

Felix Frankfurter:

Have you prominently suggesting there were 211 pages of footnote refer only to three?

J. Lee Rankin:

Yes.

I’ll tell you —

Felix Frankfurter:

Do we have to go through the 211 —

J. Lee Rankin:

No.

I’ll try to —

Felix Frankfurter:

— to satisfy one self directly?

J. Lee Rankin:

Not in regard to this problem.

I’ll try to briefly tell you what the rest of the 211 consist of and you care to go for that.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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J. Lee Rankin:

I don’t think it bears on this particular problem.

What I’m trying to illustrate here is that the material that they say as to what the instructions were is not quite accurate.

After the point that they give you which is — that the object stands and said instructions specifically stated and expressed, it was the object of prevailing upon Mexico to agree to the line shall be established along the boundary defined by the Act of Congress of Texas approved December 19th, 1836.

Hugo L. Black:

What page are you reading?

J. Lee Rankin:

I was reading from their brief, 102.

Hugo L. Black:

102, I take it.

J. Lee Rankin:

And that indented portion toward the — on the bottom of the page there.

Now, to me, that — without more, look like they were telling Trist and Sidwell, “You go down there and negotiate according to this statute.”

Maybe I read something into it that isn’t there, but that’s the way I read it on the face of it.

Then, when I found what the instructions really were, I find that after that comma there, or they don’t have the comma after 1836, but there is a comma, there is the word “to wit, beginning at the mouth, beginning at the mouth of the River Rio Grande”.

Excuse me, I think the river isn’t Rio Grande.”

Beginning at the mouth of the Rio Grande; dense up to principal stream of said river to its source; dense do north to the 42nd degree of north latitude.”

Now, that is a definition follow this boundary, as I read it, and you can each judge of course for yourself very well.

As I read it, it’s the statement follow the statute but “to wit” is a specific — specifically —

Felix Frankfurter:

Do you think “to wit” cuts down the Act of December 19th as if to with the limit anything that might be found to be beyond what — what follows “to wit” in the text you’re reading?

J. Lee Rankin:

No, I think “to wit” is the text that I have read following says, “You follow that statute except —

Felix Frankfurter:

What I want to know is whether the “to wit” curtails anything that was approved on December 19 that goes beyond the language following “to wit” clause or “to wit” phrase.

J. Lee Rankin:

Well, as I read it, the instruction is, “You follow the statute but this is what you follow.” And it —

Felix Frankfurter:

Only that part of the statute and nothing else, is that it?

J. Lee Rankin:

That’s — that’s the way I read it.

Because there is no words of three leagues about it at all.

Instead it says, “Begin at the mouth of the Rio Grande”.

Felix Frankfurter:

(Inaudible) does it?

J. Lee Rankin:

No.

It comes down to degree of north latitude and quits.

Now —

Potter Stewart:

That doesn’t — the use of the word — the phrase, “along the boundary” mean that the instructions were to use that part to — that part of the boundary along that boundary in the negotiation.

It doesn’t say to incorporate the entire boundary.

He’s just referring to that part of the boundary that’s in dispute, isn’t that a fair construction?

J. Lee Rankin:

Well, I would think that —

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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Potter Stewart:

I mean, let’s say we have a 500-mile boundary, we can negotiate for 10 miles along that boundary.

J. Lee Rankin:

I think that is a fair construction.

It seems to me that the quotation left out the limitation on the meaning of what they were saying about the statute.

Now, everybody can interpret for himself what that language is.

But it’s clear there is no question about the facts that the instructions incorporated the language that I say in regard to the “to wit” and it said nothing about three leagues all over — statute does say three leagues.

It said, “Beginning at the mouth of the river,” and then proceeding and so forth.

Felix Frankfurter:

My question is why does — did your argument has any significance to imply that the three-league were deleted by virtue of the fact that they were not included in the language that follow phrase “to wit”?

J. Lee Rankin:

Well, that’s the way I construct —

Felix Frankfurter:

That’s the way you read it?

J. Lee Rankin:

— I read it.

I may be mistaken, but I —

Felix Frankfurter:

It cuts down what the statute says and restricted nearly to what it follows “to wit”.

J. Lee Rankin:

Yes.

Now —

Felix Frankfurter:

(Voice Overlap) —

J. Lee Rankin:

— I — I did further asked that it’d be examine, the whole 211 pages to see if there was any discussion of any kind in regard to three leagues.

And our examination of the 211 pages, all handwritten was not such that we could tell you every word of it.

We didn’t try to copy that.

But we did try to search whether there was a word of three leagues in it and we found none.

Felix Frankfurter:

That’s two-edged argument, isn’t it?

J. Lee Rankin:

I think it’s pretty strong our way, but I may be wrong.

Felix Frankfurter:

I mean they didn’t — were to refuse.

J. Lee Rankin:

Well, I would think that if —

Felix Frankfurter:

You don’t talk about a thing because it’s not — nobody can tell.

J. Lee Rankin:

If someone would say that you — when you describe or say “to wit” in regard to a boundary that I thought was is important that involve three leagues in my statute and if somebody tried to leave it all on me and negotiations, I would certainly say, “You put it in there.”

Felix Frankfurter:

In the light of the Submerged Lands Act.

J. Lee Rankin:

Well, I think if it was important at the time to anybody.

Felix Frankfurter:

What if everybody accepted it?

I’m not saying everybody did but if it is to the matter of Court, even careful lawyers don’t always spell out things that matters before us.

J. Lee Rankin:

Well, then, I’ll give you another example where they left it out.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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J. Lee Rankin:

It was stated in the — in the Texas brief that, certainly, there must have been in the Jackson papers when he sent this communication to Congress, there’s 10 different reports.

Some one of those reports must have had something in it about the Texas statute, and one of them did, only one.

And in that particular paper, it was a description of the statute by lieutenant colonel — a colonel of a corps of topographical engineers at that time in which he said, “Beginning at the mouth of the Rio Grande” leaving out any reference of three leagues at all.

I don’t know why it was left out.

If it was important and mean anything that they were contending for, why in the world would it be left out in these important considerations?

That’s the only observation that I can make in regard to it.

I think, any man can make his own construction but it seems to me if it was any kind of an issue between these people that they are contending for, that they wanted for any purpose and to maintain that that was their maritime boundary as between the United States or the rest of the world, or Mexico that they wouldn’t have left it out in important communications of that kind.

William O. Douglas:

What was the reference to President Jackson?

J. Lee Rankin:

Well, there was a communication —

William O. Douglas:

His message to Congress?

J. Lee Rankin:

Yes, his message to Congress.

And then, in the Texas brief, they say that out of all those 10 communications that were attached to it, there is certainly would be some reference to the statute.

And there was a reference, and there was an — only one in one of them.

And in that, it was a description of this statute by the corps — this representative of the corps of topographical engineers, and it referred to — beginning at the mouth of the Rio Grande and said nothing about three leagues whatsoever in describing the statute.

It seems to me that was delivered to Congress as to what the statute was, and it was inaccurate, it was incorrect as to what the statute contained.

But it did show that in bringing the matter to the attention of Congress, even the people like topographical engineers were specialist in that field did not place any importance on that provision and they didn’t even recited to the Congress.

Now, it’s also said that we claimed islands 20 leagues into the sea because of the Treaty of Paris in our settlement of the revolutionary war.

And we did receive a session of the islands 20 leagues in the sea.

But it’s — no one has ever claimed on behalf of United States that we had any maritime boundary at that point.

We claimed that those were islands belonged to United States such as there are and the three miles runs around them, just like they would run around the sea coast.

That’s all has been in the position of the United States as it maritime boundary.

It’s also said that as to the Bering Sea that we receive a session or grant from Russia that included some of the sea for large distance.

But that just isn’t born out by the history.

The grant itself was not for the sea.

It said territory on the islands and continent and marked this as the line.

It didn’t say any part of the sea and then there was an act in Congress where they tried to claim part of the sea, and the Congress rejected any such claim.

And then the Bering Sea arbitration proceedings, it was adjudicated that the United States had never claimed more than three miles.

And that’s the part of the decision of that arbitration that was binding upon the parties, and I think it was in a careful examination of the United States position and the history of it and all that happened.

So, there just isn’t anything to that claim either.

Now, it also said that with regard to Alaska, we claim the territory out 10 miles from the coast.But that isn’t — that is incorrect too.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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J. Lee Rankin:

The fact is that the description is in regard to the 10 miles inland.

And if you examine that description of the session, you will see that it described 10 miles inland and not seaward and the purpose was to take care of that area between British Columbia and the coast that we acquire in that session, and that just all there is to it.

It works out mathematically, the language describes it, there isn’t any basis for the claim that we were making any kind of a claim for 10 miles seaward under that session and we never have.

Now, the United States thinks that when the provision was made in the Enabling Act, hence, bounded by the said gulf to the place of beginning that that means that you run along the Gulf but you don’t run out three leagues in order to determine what the territory of Louisiana was that came into the Union at that time.

Hugo L. Black:

But what’s the gulf?

J. Lee Rankin:

The gulf would be, as to — it seemed to me, as to Louisiana would be the coast.

Charles E. Whittaker:

(Inaudible)

J. Lee Rankin:

Yes.

As — now, we don’t question.

But including the — including all islands within three leagues mean have some meaning.

We say that those islands within three leagues were included but not the water in between as a part of the territory.

William J. Brennan, Jr.:

Are these questions — did you answer Justice Whittaker to three miles from the coast or —

J. Lee Rankin:

Well —

William J. Brennan, Jr.:

— I mean high gulf of (Inaudible)

J. Lee Rankin:

In — there is a distinction in the Enabling Act for Louisiana between that for Mississippi and Alabama in that they used the words “coast” in that Act and in the others they used “shore”.

And I’m just trying to say that I thought that in — in light of that, the Gulf would be the coast for the State of Louisiana.

William J. Brennan, Jr.:

What is the coast?

J. Lee Rankin:

Well, those are two technical words.

I think I can describe it and we have it in a footnote in our brief that “coast” is where the sea meets the land and the inland waters, and the “shore” is the median low point where the water meets the ground I mean.

Maybe that doesn’t helping, that’s [Laughs] —

William J. Brennan, Jr.:

Well —

J. Lee Rankin:

— technical explanation.

William J. Brennan, Jr.:

(Inaudible)

J. Lee Rankin:

Well, it seems to me the difference between “coast” and — and “shore” is that we regard on (Inaudible) where there was no question of what was a — a say that would comply with the requirements that you can choose across and protect against foreign (Inaudible) coming into it.

It used to be an arbitrary rule of 10 miles limit.

It has been observed by some international acts.

But there would be a coast review here, and I think the shore would be wherever the water would come up on a median low point on any of the mainland ground.

Felix Frankfurter:

Can it be translated into miles?

J. Lee Rankin:

Well —

Felix Frankfurter:

Or either.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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J. Lee Rankin:

— the concept of shore and coast is — is not based on miles.

It is based on where the waters come together and the —

Felix Frankfurter:

But if — if it isn’t with boundary but I would like to know so that coast or shore indicates how many miles out from the — from the actual foot of land from the coast when you say coast and shore.

J. Lee Rankin:

Well, it would make a substantial difference in — if you would use “coast” instead of “shore” because you do, there, take into account inland waters.

But there — and so, when there are inland waters recognized such you measure from there instead of going back to where the land is and where the —

Felix Frankfurter:

It can go out three miles of any — at any rate?

J. Lee Rankin:

Oh, yes.

And —

Felix Frankfurter:

Why — why three miles?

Because the statute said it or national —

J. Lee Rankin:

The —

Felix Frankfurter:

— policy or what?

J. Lee Rankin:

Well, you would go —

Felix Frankfurter:

When you get the three miles from, is what I want to know.

J. Lee Rankin:

It’s the maritime boundary of the United States.

It’s the policy of the United States.

It’s been —

Felix Frankfurter:

But it doesn’t have to be because the station have left into three miles.

J. Lee Rankin:

That’s right.

Felix Frankfurter:

So that what I want to know is, what determines the Louisiana’s boundary of the State not the national boundary but three miles?

J. Lee Rankin:

Well, the — at the time, they didn’t place the three miles.

When they — it entered the Union, it was just at the coast.

Felix Frankfurter:

So that 23 miles at all.

J. Lee Rankin:

No.

William J. Brennan, Jr.:

It’s only under Section 4, I gather, of the Act.

What the Government’s position is they make sense, the three miles.

J. Lee Rankin:

Yes.

And further, the fact that they did pass statutes from which they went a 127 miles.

William J. Brennan, Jr.:

So, now, this — this (Inaudible)

J. Lee Rankin:

We don’t —

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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William J. Brennan, Jr.:

— trying to get to — we heard from Mr. Sachse yesterday that “coast” for the purposes you just mentioned, the three miles provision —

J. Lee Rankin:

Yes.

William J. Brennan, Jr.:

— that some artificial line, as I understood follows clearly.

Are you in accordance with (Inaudible)

J. Lee Rankin:

Oh, no.

We disagree very violently.

William J. Brennan, Jr.:

Yes.

Now, what we see on the map behind us are measured from this line about what Mr. Sachse told us yesterday?

J. Lee Rankin:

As I recall the black line saying Louisiana Boundary Act 33 of 1954 is the boundary they claim as of 1954 which they claim as the coast on which they would measure their three leagues.

Potter Stewart:

No, I think you’re mistaken, Mr. Solicitor.

J. Lee Rankin:

Is that wrong?

Potter Stewart:

I think that black line is a line parallel to and three-league — three leagues distant from a line delineated by the coast guard seaward of which the international rules on the road applied to navigation and manner of which the inland rules of the road apply.

J. Lee Rankin:

Mr. —

Potter Stewart:

The latter one being the coast according to Louisiana and the black line being three leagues seaward of the coast.

J. Lee Rankin:

That — that’s what they say at the —

Potter Stewart:

I’m not saying their position (Inaudible)

J. Lee Rankin:

Our position is that it would three miles but back to the coast which would go back to the islands that we recognized are apart and also along the shore or along the technical coast and then there are inland waters recognized under —

William J. Brennan, Jr.:

Well, it is to say that what the line is the Government tried to — just has yet been defined.

J. Lee Rankin:

That’s right.

William J. Brennan, Jr.:

And this — this would still, whatever the outcome is for date, even been measuring the three miles that the Government position is there will have to be measured in some of the coastline not yet determined if the Louisiana position with the coast guard (Inaudible) is that right?

J. Lee Rankin:

That is right.

Felix Frankfurter:

Do I understand you, that the three miles, our virtue of Section 4 of the Act under consideration and not three miles as of the time that Louisiana came into the Union.

J. Lee Rankin:

Yes, Mr. Justice.

Felix Frankfurter:

And in what document do I find the answer?

What document can I clearly find out the three miles the time Louisiana came in?

J. Lee Rankin:

Well, we rely upon the Enabling Act and we set out a portion of it on page 172 of the Government’s brief.

Felix Frankfurter:

The original brief?

J. Lee Rankin:

Yes.

William J. Brennan, Jr.:

What page?

J. Lee Rankin:

172.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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Hugo L. Black:

How was it treated in the — in the Louisiana and Mississippi case of the paragraphs one and two?

J. Lee Rankin:

Well, if you recall, Mr. Justice Black, you said, that is the Court said in U.S. against California that the Court never had to consider the question of the maritime boundary in that case.

It’s claimed by Louisiana that they did but the Court specifically said that and the Government thinks that it was not considered.

Now, when they talk about the deep channel, that was over the deep channel of the rivers there that the Court was talking about in that case and wasn’t the deep channel out in the waters in the sea or anything like that as we think it’s clear in the language of the case.

So that the recordings did not in Louisiana against Mississippi decide what the maritime boundary was, it expressly said it didn’t.

And this Court referred to that language in U.S. against California.

Hugo L. Black:

Maritime boundary in the Louisiana against Mississippi.

I understood you to say, yes there, did you not?

J. Lee Rankin:

Yes.

Hugo L. Black:

And the Government in reliance as having decide to maritime boundary of the U.S. (Inaudible)

J. Lee Rankin:

Yes — no — I did — I don’t be misunderstood.

In U.S. against California, you referred to the case of Louisiana against Mississippi, and you said that the Court in Louisiana against Mississippi did not decide what the maritime boundary was.

That’s the reason I was referring to that case because you expressly referred — the Court did to that fact itself but it didn’t decide that question.

Hugo L. Black:

The national maritime boundary.

J. Lee Rankin:

Or for the States in that case.

We didn’t decide the maritime boundary at that time.

Felix Frankfurter:

Is the Government arguing that the national boundary and the state boundaries must be —

J. Lee Rankin:

Coexisting?

Felix Frankfurter:

The state boundary never can be larger or broader than — larger than the national boundary?

J. Lee Rankin:

Yes, Mr. Justice.

But it never could be beyond because then it would be foreign territory.

Felix Frankfurter:

But wouldn’t it be — might — might not be foreign territory or it might be nobody’s territory therefore if —

J. Lee Rankin:

Well, with — with part of the State, be out in the Union —

Felix Frankfurter:

(Voice Overlap) —

J. Lee Rankin:

— impart of the Union —

Felix Frankfurter:

(Voice overlap) it isn’t foreign territory even when the — our national policy, is it?

It isn’t foreign territory I hope and isn’t nobody’s territory.

J. Lee Rankin:

No.

Our own — our whole claim is that, beyond —

Felix Frankfurter:

Everybody has access to it.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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Felix Frankfurter:

That’s —

J. Lee Rankin:

That’s right.

That belongs to everybody.

It’s freedom of the seas.

Felix Frankfurter:

Alright.

You say it’s for the Government, but I say it belonged to nobody.

J. Lee Rankin:

Well —

Felix Frankfurter:

It’s ultimately fair.

J. Lee Rankin:

Yes, Mr. Justice.

Charles E. Whittaker:

(Inaudible)

J. Lee Rankin:

Yes.

Charles E. Whittaker:

(Inaudible)

J. Lee Rankin:

Not in that particular phrase.

Charles E. Whittaker:

(Inaudible)

J. Lee Rankin:

Because it says, including all islands within three leagues of the coast.

But if they would want to just say anything beyond the Gulf, they’d have to say 10 feet or mile, three miles.

Some — something the Gulf would be right where the — either the coast or the shore would be.

Charles E. Whittaker:

(Inaudible)

J. Lee Rankin:

I think that by the definition, there’s a difference between the mean low point where the water touches the land which is the — is definition of shore and the coast.

Potter Stewart:

The answer would depend, Mr. Solicitor General, wouldn’t it upon the specific geography of the coastline involved?

If you have a straight coast along the sea, there would be no difference between the shore and the coast, each would be identical but if you had islands and bays and inland waters and so on, then you — the shore might be a different line from the coast line, isn’t that about right?

J. Lee Rankin:

That’s my understanding of it, Mr. Justice.

I —

Potter Stewart:

And so, you can’t give categorical answer because it would depend upon the geography of a specific area?

J. Lee Rankin:

I think that the — the problem is, as you say that it follows as to the shore the sinuosities of the —

Potter Stewart:

Right.

J. Lee Rankin:

— coastline.

And so that it’s difficult to describe — except as you get down to the line itself.

And we have never contented in our brief or otherwise in this matter that that wouldn’t have to be examined.

But the question is, what kind of a measure you put on it?

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
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J. Lee Rankin:

Three miles or three leagues.

And that when we — when the Court decides that question, then we will still have the problem as we had in the case of the United States against California when — after the Court’s decision, to determine just where the line would be in regard to bays is another question out there.

Charles E. Whittaker:

(Inaudible)

J. Lee Rankin:

Oh, yes.

Charles E. Whittaker:

(Inaudible)

J. Lee Rankin:

Well, whatever is within the distance of three leagues from that point of measurement, there’s no question of what the Government would recognize that they were entitled to for three miles.

Now, three leagues, as far as the — including all islands.

Now, there is no question in regard to that.

And that is —

William J. Brennan, Jr.:

Of water space?

J. Lee Rankin:

No.

This is as to coast.

William J. Brennan, Jr.:

Yes.

J. Lee Rankin:

The — the definition says, including all islands within the coast, with three leagues of the coast.

William J. Brennan, Jr.:

What water around (Inaudible)

J. Lee Rankin:

With — we say three miles.

William J. Brennan, Jr.:

Three miles.

J. Lee Rankin:

Yes.

William J. Brennan, Jr.:

And under each of the islands?

J. Lee Rankin:

Yes.

Now, there are inland waters as between a great many of these islands that we recognize under the proper rules of international law, and they would they get that too under the description of the Submerged Lands Act.

There’s no question as far as the Government is concern about that.

But the — the trouble — the real bone of contention is whether or not they get to measure up three leagues from the coast guard lines as the way they’re taking it but even say they abandoned that or they go three leagues and then three light leagues up from the islands and that’s the real problem.

And if you’d see the effect on — on the development and the exploration, it involved a tremendous sum of course.

William J. Brennan, Jr.:

I gather to this line at one point is beyond the Continental Shelf.

J. Lee Rankin:

That’s right.

No, this is the 100,000 line.

William J. Brennan, Jr.:

I beg your pardon?

J. Lee Rankin:

I’m not sure whether that present —

William J. Brennan, Jr.:

(Voice Overlap) —

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 1) in United States v. Louisiana
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J. Lee Rankin:

— to be a Continental Shelf line all along the knot.

But it does — over on this side, it has — says 150,000 and the other says made the Continental Shelf.

I couldn’t answer as to whether it’s supposed to be the Continental Shelf all the way along.

Hugo L. Black:

Suppose Congress had just decided that the States would have boundaries after certain (Inaudible) even though it had set the boundary (Inaudible) suppose they decided that (Inaudible)

J. Lee Rankin:

No, I would not.

Hugo L. Black:

On any ground at all, whether you do the same things or equality of the States that has been (Inaudible) any constitutional ground on which they could be if we assume?

J. Lee Rankin:

No.

We — the Government concedes in the brief that — and there’s no question about it under the law in my opinion that the United States can prefer one State over another and it has in its history.

Now, the equal footing is a different problem in regard to the State’s —

Hugo L. Black:

Is that statutory or constitutional (Inaudible)

J. Lee Rankin:

That’s constitutional.

But that’s based upon when they entered the Union.

And our — the United States has preferred one State over the other in many different action so —

Hugo L. Black:

(Inaudible)

J. Lee Rankin:

The United States?

Hugo L. Black:

Yes, United States.

J. Lee Rankin:

Well, I’m not sure about that one.

That’s a little different kind of a question whether it could take away from the State without its consent something it already had.

That’s covered by the Constitution in other places.

I don’t think —

Hugo L. Black:

Your argument in the argument of their counsel was raised.

That’s just your point and at least a very, very, very great difficulty in determining as a matter of judicial policy where the boundary is.

Suppose, I wanted to give the conclusion that they had not definitely determined them and just as so vague that you couldn’t say what they had done, what should be done (Inaudible)

J. Lee Rankin:

Well, the Congress was pretty certain that they all had boundary, legal boundaries.

Hugo L. Black:

Legal boundaries?

J. Lee Rankin:

Yes.

Hugo L. Black:

Of — of shore or coast or this concept between the coast and the shore and that has been raised (Inaudible)

It’s your position, is it, that Congress does have — that if Congress had deliberately concluded that despite the equal States and despite the general idea of the three-mile boundary that it shall be at a certain place that that (Inaudible)

J. Lee Rankin:

Well, I — I think that’s a little different question, Mr. Justice Black, when you asked me before in that I thought your other question incorporated extending the boundary.

Now, I think there is quite a difference in trying to shorten the boundary, as far as constitutional power is concern.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
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J. Lee Rankin:

I don’t think there’s any question of what Congress could say that a State could have a boundary that it now has or that it could extend that boundary if the State wanted to.

But I don’t think it could just take a slice off of piece of the State without its consent.Does that make clear what I am trying to say? [Laughs]

Hugo L. Black:

I think something awkward, don’t you think.

J. Lee Rankin:

Yes.

Hugo L. Black:

Where is the boundary?

J. Lee Rankin:

Well, then you have to go to legal rules about the measurement.

And of course, we have no difficulty with inland States or very little.

We’ve had a number of law suits in years that — that we had in our country.

But they have been worked out.

Some of them may have been difficult problems such as, where the boundary was on the ground.

And I think that you have the same problem as to these, not in the case at the moment, but in — it — regardless of where do you fix in the three leagues or three miles.

You would still have to figure how you made it in order to get the maritime boundary, where it was measured from.

And I think that the Submerged Lands Act was already provided for that but it has to be put on the ground.

And that would be something that we contemplate would have to have —

Your — your view is, I take it, all we have (Inaudible) is whether some — all these States get three leagues or three miles?

J. Lee Rankin:

That’s correct.

Then — then, once that’s decided, then you say it becomes a surveyor’s job in effect to determine what the baseline is and what you measure either one of those distance.

J. Lee Rankin:

Yes.

Is — is that it?

J. Lee Rankin:

And that’s exactly what was done in U.S. against California.

Hugo L. Black:

But it wasn’t completed.

J. Lee Rankin:

It wasn’t completed but you will recall your viewpoint — Mr. Davis as a master —

Hugo L. Black:

I don’t recall that.

J. Lee Rankin:

And —

Hugo L. Black:

I have considerable difficulty —

J. Lee Rankin:

Yes.

Hugo L. Black:

— for the efforts you make.

Are you sure that a surveyor without legal rule announced, the Government policy with this in reference to coast and so forth.

J. Lee Rankin:

Well, I think there’s — some of that involved in Mr. Davis’ report.

He came back to the Court and said that he thought certain rules would apply to establish the California boundary in a certain way.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
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J. Lee Rankin:

And then the Court would have to decide whether his estimate of the legal principles that would be involved was — was the law that the Court would accept.

And then, it was his report would’ve fixed the boundary of California.

If it wasn’t and this Court would have to accept the contentions of California or maybe part of them and would say those were the law, and under that, the boundary would be fixed.

Hugo L. Black:

Those rules should be announced by Congress, as — as I gather from you (Inaudible) on what some people would say would be an arbitrary (Inaudible) at this country or whatever (Inaudible) wanted to claim 50 miles out into the sea or 45 or 60.

And if that were done by the country would certainly prevent the binding on the shores or to this except into the policies.

J. Lee Rankin:

Well, we think that would then be a policy that was properly within the realm for the political branch of the Congress to determine and that it would be binding except if it — it would encroach upon constitutional rights of the State.

And we assume from — what you — that your question doesn’t incorporate anything like that.

Hugo L. Black:

Well, they have gone far enough has they not ant indicate it that certainly the three-mile limit, which was considered to be a (Inaudible) need not be (Inaudible) in the Gulf hence, their conditions drawing with — it could be nine months.

J. Lee Rankin:

They have only gone so far, the Congress, so far as to say that if at the time these States entered the Union, they had legal boundaries that were beyond three miles.

They wish them to have —

Hugo L. Black:

Did they use the word “legal boundary”?

J. Lee Rankin:

No, they’re existing.

All through the debates they said it was legal boundary, existing legal boundary.

Hugo L. Black:

— for arguing as I looked at it on the basis of whatever had been the policy and whatever was the law, in some way, some of these States are always ought to have more rights than they have been given out in the Gulf of Mexico.

J. Lee Rankin:

No —

Hugo L. Black:

And as a matter of fact, that has just the connection.

(Inaudible)

Hugo L. Black:

Yes.

That — that they just had — they were determined as a matter of policy that it would be better for the nation (Inaudible) look into this and see if it had to be readjusted.

J. Lee Rankin:

Yes, but they were only willing to go so far as to treat all the States the same.

And they said they were willing to give them three miles.

Hugo L. Black:

Between all of the States, the same?

J. Lee Rankin:

Yes.

Hugo L. Black:

You mean in the Gulf or all over the country?

J. Lee Rankin:

All over the country.

They were willing to give them three miles.

Hugo L. Black:

Did they say it?

J. Lee Rankin:

And then in the Gulf, if they already had a boundary that was three leagues, then that would be the measure and they — they were saying that they we’re treating the same because they already have it.

Felix Frankfurter:

Although from your point of view, the national boundaries were suggestively two miles.

J. Lee Rankin:

Well, we think that the — the history shows that, Mr. Justice.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 1) in United States v. Louisiana
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Felix Frankfurter:

But I — I’m not — I’m just adding that qualification.

J. Lee Rankin:

Well, I want to clarify —

Felix Frankfurter:

What did you answer?

Although they would get three leagues if that’s what they have when they came in, although the national boundary from your point of view in this degree was three miles, is that right?

J. Lee Rankin:

Yes, except that if we were wrong about the law and Congress did, under the law, recognize for Texas a boundary of three leagues, which we do not think is the law with other fact.

But if that had happened, then we feel that the lawyers that, in fact, our conception of what the foreign policy of the United States was changed to that extent by that action.

Felix Frankfurter:

But all the States?

J. Lee Rankin:

No.

Felix Frankfurter:

In other words —

J. Lee Rankin:

For that one State.

Felix Frankfurter:

— you say the national boundary of this country is three miles and has been time out of mind.

J. Lee Rankin:

That’s right.

Felix Frankfurter:

Is that right?

J. Lee Rankin:

That’s right.

Felix Frankfurter:

I guess following Justice Black’s question, again, if they can establish within the criteria of this Act of 1953, a particular State might have a boundary that’s extended beyond the national boundary, that is correct, isn’t it, if it can establish it?

J. Lee Rankin:

Well, but not beyond the national boundary, that’s — that’s —

Felix Frankfurter:

What you’re been — the national boundary for everybody else is three miles which were x-based including three — three-league and therefore pro tanto, that’s the national boundary of the United States, is that what you’re saying?

J. Lee Rankin:

Yes.

And I think that the —

Felix Frankfurter:

I don’t understand that.

J. Lee Rankin:

— I think that it’s —

Felix Frankfurter:

(Voice Overlap) satisfaction, I don’t know what —

J. Lee Rankin:

I think it’s possible, Mr. Justice, for the United States to say, “We will jug out three leagues at one point, as a foreign policy, if they want to do it.”

Now, I think that would be in conflict with the international law as we view it.

Potter Stewart:

Well, except —

Felix Frankfurter:

(Voice Overlap) —

Potter Stewart:

— Mr. Solicitor General, that’s not the test of this statute, is it?

It’s not where the boundaries are today.

J. Lee Rankin:

No, no.

Potter Stewart:

It’s the State’s boundaries as of the time they became members of the Union or as “heretofore” approved by Congress.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
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J. Lee Rankin:

Yes, sir.

Potter Stewart:

And that has nothing with what the boundaries are of the States today.

J. Lee Rankin:

No.

Potter Stewart:

It has of that time.

Now, there may well be a three — three-mile boundary around the continent of United States today, not an inch beyond that and still, they — on the State’s point of view if they could show that their boundary in 1845 or 1868 or whatever the critical date is involved, was a certain amount and that’s the measure, the measure to which certain proprietary rights have been relinquished by the Congress, isn’t that it?

J. Lee Rankin:

Well, yes.

But there is —

Potter Stewart:

Without records to what that boundary may be today.

J. Lee Rankin:

There was —

Felix Frankfurter:

(Voice Overlap) national boundary was in — on the critical basis.

Potter Stewart:

Exactly.

J. Lee Rankin:

It’s — it’s a little more complicated than that, Mr. Justice, because of this.

Potter Stewart:

It’s not being addressed.

William J. Brennan, Jr.:

And so we got this yesterday.

[Laughter]

J. Lee Rankin:

Yes.

Well, I thought we did too.

But in the statute, when Texas was admitted into the Union, Congress would have the power to recognize a boundary of three leagues if it saw fit to do so, we said it didn’t.

If it did, that would establish as to Texas a foreign policy of three leagues for that particular area.

Including the national boundary?

J. Lee Rankin:

That’s part of our national boundary.

Potter Stewart:

As of that particular date.

J. Lee Rankin:

As of that date.

Potter Stewart:

If and only if your — your construction of the words “at the time of” is the proper one.

J. Lee Rankin:

That’s right.

Potter Stewart:

If — if the State’s construction of the words “at the time of” i.e. not after but just prior to becoming a union that it wouldn’t have anything whatsoever to do with our national boundary, would it?

J. Lee Rankin:

Well —

Potter Stewart:

Except, of course, in those case of those dates which were territories.

J. Lee Rankin:

I can say yes to that only if you add — if you add in the question or add to it proposition that they’ve cut down “at the time” afterwards.

If it stays the same, certainly, that’s part of our boundary, that’s three leagues, and that’s part of our national policy.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
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Felix Frankfurter:

Now, when you take — talk about a national boundary, which is you say three-mile, but if Texas in fact has three-league once it came in, and by admission, that was legally recognized by Congress and is your way.

Congress deemed that the — that the boundary of Texas which is three-league and it brought Texas in on those terms, on three league terms, I will say that this Texas thereby became part of the United States, part of the nations of the United States, that now the national boundary of the United States was three miles for everybody, but for the Texas part, it was three leagues and therefore, the national boundary of the United States, pro tanto, of Texas is three leagues.

Is that what you’re saying?

J. Lee Rankin:

That’s what I think of foreign policy would be.

That was true.

Felix Frankfurter:

But why do you have to look in to foreign policy?

That’s what I want to know.

J. Lee Rankin:

Mr. Justice, I — I think that —

Now, the point we’re right back were a discussion would serve to your favor as — as to what should be.

J. Lee Rankin:

[Laughter]

I’m sorry.

Felix Frankfurter:

It may not be your fault.

That’s your fault.

[Laughter]

Pardon me.

Namely, what are the criteria of this statute, the legal criteria under the statute (Inaudible) the meaning in the word “boundary”, historic boundary, that’s what we’re talking about.

J. Lee Rankin:

Yes.

Where we get it, you argue (Inaudible)

J. Lee Rankin:

Well, I — I think that’s true, and I think that all the recent questions are hypothetical.

But the consequence of your argument purports to (Inaudible) that the boundary of Texas if it was established according to your criteria (Inaudible) the international boundary of United States (Inaudible)

Felix Frankfurter:

It doesn’t have to be because United States may not protect, United States may not (Inaudible) of the other nation care to protect that part of it if it chose not to.

And the notion — that’s — that’s my difficulty that you think it’s a mathematical composition that the national boundary with reference to the — when you discuss states boundary, you discuss the national boundary.

William O. Douglas:

I thought your —

Felix Frankfurter:

If it pleases you, if it pleases you or anybody else to say that means the particular State is part of the United States, therefore, that’s a part of United States, that’s all right.

I get no — I get no help to — for this problem out of that.

J. Lee Rankin:

Well Mr. —

Felix Frankfurter:

(Voice Overlap) —

J. Lee Rankin:

— Mr. Justice Frankfurter, let me take my own statement in Nebraska.

That’s not a maritime state.

I will see if can illustrate it.

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J. Lee Rankin:

Nebraska has certain boundaries that I think we wouldn’t have much trouble of recognizing at least on maps.

And if the United States would refuse to defend those boundaries against some foreign attack, I think that they would violate the Constitution of United States because it agrees to defend as a part of the Constitution.

Now, if we would say in the annexation statute admitting Texas into the Union that it had a boundary for civil and political boundary, as it is described in the statutes, of three leagues, that would be part of Texas territory.

And that’s the way all of the courts have discussed it.

So they would be entitled to call upon the United States to defend this territory as a part of — just like along Rio Grande.

Felix Frankfurter:

But defend doesn’t mean you have to go to war, defend may simply means writing a protesting note.

J. Lee Rankin:

Well, of course, you do — you go as far as you need diplomatically to try to protect you.

The point is wether you want to (Inaudible) what the area was that is being claimed by the United States (Inaudible)

J. Lee Rankin:

Yes.

But I — what I was trying to say that if we did recognize that was part of the territory of Texas and part — and it came in the Union that way, I don’t see how we could say after that, “Well, that — really it isn’t Texas, we won’t defend it anymore than any other area of Texas.”

Felix Frankfurter:

Let me put to you my difficulty —

J. Lee Rankin:

Yes.

Felix Frankfurter:

— with your position.

You are so preoccupied with determined to your satisfaction with all the weight of the evidence that you pursue that the national policy of the United States was three miles that you regard that almost that was necessary infusion into for the existing boundary, in the 1948, for Texas.

J. Lee Rankin:

Well, I don’t think I do —

Felix Frankfurter:

It derives you — you’re almost — you don’t say it as a matter of law, it become might be close to saying that the national policy of the three-mile belt is so powerful and so important that it almost makes impossible giving proper heed to what the special facts pertaining to Texas.

J. Lee Rankin:

All I mean —

William O. Douglas:

I think that your — your position of the boundaries, something rather simple and that is that we annexed Texas and Texas did not annex us if it was — turning it into a — into a national system of a three-mile wide.

J. Lee Rankin:

That’s right.

William O. Douglas:

I mean, that’s really your starting point.

J. Lee Rankin:

Yes.

Felix Frankfurter:

Does anybody disagree with that?

J. Lee Rankin:

Well —

Felix Frankfurter:

Except in — except on boundary that annexed United States?

J. Lee Rankin:

But I — Mr. Justice Frankfurter, I don’t think that there is that much difference between this, and I’m thinking about this, I think that we have to conceive this as territory, and I haven’t gotten that across.

I mean, I’m trying to explain it to you, I believe, because all of the courts and the writers treated this territory.

And to the idea that because it’s out in the sea that it is not territory just doesn’t fit in with the law, that’s been applied.

Now, all I can do is try to stand before you and tell you what the authorities had been.

And if other courts have regarded this as territory, and this Court has, in the past, a maritime boundary as part of the territory, then it seems to me we have to take the legal instance that proceed from that and deal with them accordingly.

And I say here, that if Texas proves that it did in fact, under all of the legal test have those rights, then it’s entitled to it.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
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Felix Frankfurter:

It may not clear and as to never, you’ve very kind about.

All I’m saying is, in connection with — and as you’ve just stated your proposition, I don’t think there’s any (Inaudible)

And I find myself not at being what you said.

But you — but (Inaudible) me, wasn’t it?

What I could from your argument is that you are so the — the national three-mile policy is so imperative in your thinking but you revolve the conflict to a deference, that Governor Daniel stated as the policy if the system.

The usual and normal procedure upon the admission of a State to which Mr. Justice Black in his (Inaudible) statement, namely, that the circumstances or the prospects of the attitude of Congress supposing what was said and not said in regarding the boundaries of a State, the manner in which the boundary of a State are determined when a State comes in.

And that for me is very blatant if I didn’t know about this until I was told.

If normally a State defined its boundary, if normally a State presents it’s application if it were for admission, if it sets forth the terms of admission, then it’s nothing you said about it presumably go extend, or accepted by the Congress.

J. Lee Rankin:

Why — I have no difficulty with that.

But I tried to point out how it didn’t get very clear that in this situation, and I said there were 30 pages in our brief of, not my talk, but the Congressmen’s talk, that they just won’t accept this business for Texas.

Felix Frankfurter:

I understand that part of your argument.

But the emphasis of your argument for me has been that although — that — that the overwriting and almost overwriting factor is that you extended it into a large — becoming on more than three miles would be a denial of deep-rooted national policy.

Isn’t that a fair statement of your position?

J. Lee Rankin:

Well, I think it’s not quite accurate, Mr. Justice —

Felix Frankfurter:

(Voice Overlap) —

J. Lee Rankin:

— and I’d like to — to say that I think that my statement to you that if the Congress, in admitting Texas into the Union, had in fact recognized three leagues that that would have created an exception to the — to the foreign policy that I thought was the fact in our State Department’s claim for 150 years as the fact of three miles and no further.

But that was quite a difference between just saying it’s three miles and just forget about anything else.

It is, to me, the law.

And if you would find that in that Admission Act, they had in fact recognized anything like that, then I felt that they would be having their boundary but I don’t think there is anything like that.

In fact, I think it’s all the way contrary.

Put it — put it in another way, what you are saying is that in view of the national policy, which I presume for a moment, it was three miles, where an Act of Admission says nothing at the very least you have to take a good hard look to see whether or not the boundaries in which — in which the State was accepted, proceeded what you regard as provisional policy, is that your position?

J. Lee Rankin:

Well, I certainly agree with that.

Felix Frankfurter:

Yes, if you go beyond that, if you go beyond that, you almost want an affirmative insertion in the Act of Admission that they did grant them to be, almost.

J. Lee Rankin:

Well, the reason I do that, Mr. Justice, I maybe wrong but let me try to —

Felix Frankfurter:

If that’s true, isn’t that the (Inaudible) of your argument?

J. Lee Rankin:

Yes, because of this factor.

Here, the United States is talking to all the other — many of the other nations of the world through its State Department.

It’s only the way it has, as I know this Court is well aware.

And it properly has a function of communicating back and forth about these various problems.

And one of them is the boundaries of the United States and the various States, where they’re part of the United States, on its maritime boundary.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
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J. Lee Rankin:

In those discussions, it has said time after time that our boundary — maritime boundary is three miles.

Now, that, to me, is important because how can we ever hope to have any kind of a foreign policy if we have a foreign policy for all the other countries of the world and we breach it for ourselves.

That’s what I’m talking about.

And I think that —

But — but surely, you have got to recognize that what is stated here in terms of rights that were given by this Act by the United States’ own position do not contravene the three-mile doctrine of the national law.

And therefore, what you’re arguing here, it seems to me, is that if the Congress had given directly that the reason is best known to itself will not do inform, namely to give extraterritorial rights to three leagues, you would be the first to say that that doesn’t violate any historic policy of the United States.

J. Lee Rankin:

Absolutely I agree with that.

And yet when you come to measure what you — when you come to measure or as I keep coming back to it all the time, define the term “boundary”.

You are superimposing on the term “boundary”, a definition which includes this ironclad policy of international law which, by its own course, almost vitiates the grant which Congress, you say, if it is done directly wouldn’t have had the right to make the (Inaudible).

J. Lee Rankin:

Well, except for this factor that they — they did take into account that if in the admission of Texas and in the admission of Florida into the United States, the Congress had in fact approved that boundary that then they would have — they would receive this benefit under the statute.

That was what they discussed was what they were doing.

Now, it seems to me that is the exception.

Otherwise, I don’t think there’s anything you can find in the debates that the Congress as a whole ever conceived that boundary would give any of these States in the Gulf anything more than the three miles.

Well, that may be true but it’s also true that you cannot find any definition of boundary in the Act if in terms of that your view that it was therefore (Inaudible) is to take the whole picture and look at it and try to see what that definition is that is most consummate (Inaudible)

J. Lee Rankin:

Intent of Congress.

— trying to achieve.

J. Lee Rankin:

That’s right.

But that is the whole problem.

J. Lee Rankin:

That’s right.

Hugo L. Black:

Mr. Rankin, with reference to Louisiana, which is before us, let’s assume that your argument that you’re heretofore making with reference to neutralization of — of (Inaudible)

May I ask, why don’t you try to reach the three-mile limit, that’s the judgment, let’s assume.

Let’s assume that — that’s some kind of fact here and we don’t know exactly yet what kind it would be, that’s enough to cause Texas to be recognized and (Inaudible) receive a grant.

Now, when we come to Louisiana, when did again that you said several times that thing here that have to be considered.

I presume that include this kind of a burden, although I don’t like to argue it, I’m trying to get out of the assumption with the burden.

But somebody has to do something, something has to be shown, some kind of evidence.

Let’s assume that was enough but before the Texas came, the Republic of Texas at this boundary.

Now, we had Louisiana.

What do you say on the policy of the law, the policy of Congress expressed by the law (Inaudible) which would justify denying to Louisiana the same right as to be held to be acquainted in Texas view the fact that they did treat for a long time the idea of three-league even though not in language (Inaudible), if it talk about three leagues, three leagues that the map was on three leagues out from something of what — why should Louisiana not be entitled to the same privilege that Texas — that Texas isn’t entitled and now, we’re on Louisiana.

J. Lee Rankin:

That’s one of your problems in this case, if you would —

Hugo L. Black:

What are the criteria?

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J. Lee Rankin:

If you’re satisfied in examination of the authorities and the debates and the law itself that mere claims are enough, then you got claims by all —

Hugo L. Black:

Why should they — why should they not be entitled?

J. Lee Rankin:

Because Congress said otherwise.

Hugo L. Black:

But did it say otherwise?

J. Lee Rankin:

Well, they did in the debates and the best history I know and I’ve given to you.

Hugo L. Black:

How could — how could — I read that notion, how could you determine what a state boundary would, except by the custom, condition in their claim that if possible, the language when they came in, I’ll just read again, the language in the statute as to Louisiana.

J. Lee Rankin:

Well, you meant —

Hugo L. Black:

You said it does refer to islands within three leagues.

J. Lee Rankin:

It never has —

Hugo L. Black:

You say that while others give them the island, it wouldn’t — that the — I — I don’t quite understand why if they got the island and Texas were — held that Texas had the right because it had claimed after it, everybody knew it (Inaudible) why would Louisiana — why should she be denied the same logic or whatever it is or policy of consideration or policy of Congress to conclude that the national interest require that this primers be heard and listened to and action be taken by the political agent.

J. Lee Rankin:

Well, if you’re going to base it just on claims, whether they are valid, legal or not, well then there are plenty claims for all.

Hugo L. Black:

All through the years?

J. Lee Rankin:

Well, different times and they’re — but they are not legal.

They aren’t anything that you would act upon.

Hugo L. Black:

That’s — that’s admissible as evidence, is it not?

Or is it —

J. Lee Rankin:

Oh, I don’t think —

Hugo L. Black:

If it’s a judicial question to be determined, what do we have unless — unless we require an expert, would you say?

My question is not asked on the basis that I — For you against, but if there is evidence that the Court must hear or have to hear in order to take a judicial determination to determine what is legal when nobody gets that out whether it’d be — either in an act of Congress or by them.

Why not the claims of the States through the years before they were admitted and at the time for it and even after it, why was those not become pieces of evidence to be considered?

J. Lee Rankin:

Well, to my mind, when Louisiana says they have three miles — three leagues out from the mouth of River Sabine under the evidence of the language that I have described to you, that really doesn’t satisfy my mind that there’s any illegal claim whatsoever.

Now —

Hugo L. Black:

In a legal thing.

J. Lee Rankin:

Well, they’re talking about legal boundaries, we think, in this Act.

Now —

Hugo L. Black:

I — I gather that maybe I’m wrong about it.

I have considerable to do with the other cases but I gather that Congress had an idea, when it attached with it, maybe the strict letter of the law wasn’t a thing to stand on that there was certain history from it and that Congress would take a new look at it then they — put — when you look at it and turn over some, I do not know how much, to us but can you just face it all on their premise that Congress was interested in nothing but the — the unclear letter of the law as to what was the boundary.

J. Lee Rankin:

Well, I don’t want to take the time of the Court to read to you the debates.

But I’m confident you will review, and I think that the — that you cannot help but come to the conclusion in those debates that Congress was never trying to dispose of this property in accordance with claims.

It was trying to dispose of it in accordance with what the law was.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
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J. Lee Rankin:

And that —

Charles E. Whittaker:

But they were writing the law — they were writing the law at those times.

J. Lee Rankin:

But they were not writing it as to what the boundaries were at the prior time.

Charles E. Whittaker:

No.

But they make the grant which Section 2 convey to the kind of bond, boundaries as they existed at the time the States with the pleasure to be used or as such was used by them.

Now, if that means just after (Inaudible) then your argument of the historic three-mile limit has force.

But if it means as the State declares that just before the State became a member of the Union, then just — was — was it not, and offer to — a conveyance to the State to the extent that they could prove their historic boundaries extended seaward and not exceeding over three leagues, and at the same time, a congressional approval of a new seaward boundary for the country.

J. Lee Rankin:

Well, if you would take — if you assume that, then how do you deal with the language that was said time after time of what they were dealing with, with the existing boundaries of the States, the legal boundaries of the States, the boundaries they have for 150 years?

They couldn’t have boundaries that just before that were one way and boundaries that were different at the moment after and still be 150-year-old boundaries, how could they?

That’s the kind of language they use in saying what they meant.

And that’s what we’ve always used in this Court as to what the Congress means.

And time after time, they said that.

May I ask you a question which is somewhat ought to be, at least for my own enlightenment.

I’m sure that I understand the Government’s position correctly.

You do not contest, as you concede, that as far as Texas is concern, it made a claim, I’m talking about claim just as I claim (Inaudible) they claim to a three-league boundary at the time of its admission to the Union.

J. Lee Rankin:

Yes, we recognize that in the statute.

And you concede also that Florida at the time of which readmission into the Union made such a claim but deny it as a claim that was theretofore made, is that right?

J. Lee Rankin:

We don’t say readmission.

We —

Well —

J. Lee Rankin:

— say that we representation (Inaudible).

But I mean, at that time you —

J. Lee Rankin:

Yes.

— concede such a claim was made, you deny the existence of such a claim or — for having been made prior to that time —

J. Lee Rankin:

That’s right.

— in the case of Florida.

And in the case of Louisiana, Mississippi and Alabama, you deny that any such claim was ever made.

J. Lee Rankin:

Any claim that would satisfy anybody.

I understand.

In other words, you say the — including all islands’ business which is the predicate of it —

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
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J. Lee Rankin:

Doesn’t —

— on its face is not a — assertion.

It’s not an assertion on its face.

It’s not an assertion of the three-league claim.

J. Lee Rankin:

That’s right.

Hugo L. Black:

Why do you say that?

J. Lee Rankin:

Because it just didn’t interpret it that way and hasn’t been in anything we’ve been able to find.

Hugo L. Black:

I suppose it hasn’t been.

It hasn’t been interpreted the other way.

J. Lee Rankin:

Yes.

We got the islands and as I said in the Treaty of Paris, 20 leagues up from our coast in the session from Britain at the end of the Revolutionary War.

And we have always construed that is just the ounce never is giving us a maritime build out that far.

And that’s been treated that way all along.

The Bering Sea, we never claimed that sea.

We only claimed the land and the islands.

It’s been the uniform way of treating in such language.

Now, just — now, they — there is a further fact that in Section 4, you know, where it says nothing shall prejudice, it deals with statute or constitution.

And if you are going to look at this language of the debates, you’ll find there that they talked about the fact that Florida has to prove that their constitution, not all the other claims nor any other involved, just their constitution was approved in 1868 when they were admitted to representation in the Congress.

That’s what they have to prove in order to get any three leagues.

That’s what they told these people when they got this bill passed.

And was — that Texas has to prove that she made the claim beforehand by her statute, and that the Congress of the United States in 1845 approved it.

Now, they told Congress that unless they proved those things, they wouldn’t get it.

And I think they should be held to it for the interest of the rest of the country.

Hugo L. Black:

So there’s anything to be said that I don’t (Inaudible) you could take out any isolated statement.

J. Lee Rankin:

Well, I don’t mean to do that.

Hugo L. Black:

They did indicated, the bill that is indicated — it wouldn’t satisfy the law as we had written it in the California case.

It is not on constitutional ground but we had written this law in a certain way.

This bill indicates that so far as the application of (Inaudible) the Gulf, there was still that fraction of the Gulf.

J. Lee Rankin:

Well —

Hugo L. Black:

But they did desire to change it.

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J. Lee Rankin:

As to —

Hugo L. Black:

(Voice Overlap) —

J. Lee Rankin:

— the whole country, not just as to the Gulf.

You see they could —

Hugo L. Black:

I understood you to say to begin here or — or was that wrong?

Because they — this indicate the purpose of (Inaudible) Gulf differently.

J. Lee Rankin:

Well, yes, in that they were giving them a chance to prove three leagues, but they changed it.If you see the Court said, they didn’t have a footnote.

And they said that the whole maritime States had three miles.

They — they confirmed that.

If they extended their boundaries, they’ve validated their getting three miles.

Then they —

Hugo L. Black:

What they’ve indicated here is that there’s somebody maybe entitled the nine miles out, all of it.

And of course, in order to make a judicial question, it would have to give some criteria but what have they given?

J. Lee Rankin:

They have given you legal boundaries.

Hugo L. Black:

Did they use the word “legal boundaries”?

J. Lee Rankin:

They said existing which has got to mean legal.

How can a State have anything but any other kind of a boundary?

Hugo L. Black:

Well, I presume the Republic of Texas had — had that boundary.

Maybe it wasn’t a big enough republic say that in particular.

But maybe it wasn’t a big enough republic to maintain its assertion but it — it had the assertion in the claim and if it has the power to maintain it, I guess that would be its boundary.

J. Lee Rankin:

Well, I wouldn’t think so because of this.

Hugo L. Black:

The Republic of Texas?

J. Lee Rankin:

No.

Because of this, it wasn’t maintained for more than nine years.

That isn’t enough in international law.

Hugo L. Black:

Well, but international law doesn’t govern a nation unless it wants to be governed by so-called international law and if it wants to be govern by that.

J. Lee Rankin:

Well, but the maritime boundary doesn’t only affect that particular nation, it affects the whole world.

Hugo L. Black:

But we do not yet have any dreams of that (Inaudible)

We do not yet have any international law that is binding on all of the nations which can be enforced like the law of — of the United States.

And if the Republic of Texas asserts a formula to maintain or the Republic of Mexico or the — any other countries, long enough to maintain a certain claim but what — how would they support if they do not run the policy of the nation as to upset that boundary line which they asserted it was there.

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J. Lee Rankin:

Well, if the — if the — if we move it from Texas to another sea, the Russia claimed 12 miles, the United States said it would recognize only three miles, did Russia had 12 miles?

We made them go down to three.

Hugo L. Black:

I presume perhaps it finally matters as every government has that — which it asserts it then and can protect by force —

J. Lee Rankin:

That’s the law.

Hugo L. Black:

— but is the real law?

J. Lee Rankin:

But it didn’t do it and it couldn’t against the United States.

Hugo L. Black:

Well, that’s — that’s a different thing.

J. Lee Rankin:

Well, that part of the —

Hugo L. Black:

But — well, they could maintain it by them.

J. Lee Rankin:

But the question of whether it could is something that you have to look the history about but the fact that they didn’t is — is the history.

And then I’ve — we’ve got to demonstrate here and I called your attention to it.

Hugo L. Black:

I’m expressing myself with reference to that policy several times.

I don’t think that [Laughs] it’s quite as different between our ideas and good policy.

Here, we have this statute.

J. Lee Rankin:

Well, but I’m — I’m trying to say, Mr. Justice, that the international law is which this Court said it would follow that they not only have to claim that boundary, this maritime boundary, but they have to occupy and take possession and prove it for a long enough period of time that it is recognized in the international law.

Now, you said, this very court, in Oklahoma against Texas, the 24 years was a very short time to be claiming a particular boundary to establish it as a matter of right.

You didn’t pass on the question.

I don’t want to get a misunderstanding but you did comment that that was a very short time.

And the courts — there is no — there are no decisions that we’ve been able to find at all for such a short time even where they occupied and — and held the area that it would satisfy international law.

So, I say as a matter of international law, the Republic of Texas did not have, by its statute, a boundary of three leagues.

Now, at the same time, the United States of America was —

Potter Stewart:

Well, even by that reasoning the Republic of Texas didn’t have any boundaries at all.

It was only in existence for nine years, and you say that’s not long enough to be in anybody.

J. Lee Rankin:

Well, I would — I would recognize, I think, that their — we have to — under international law that certain places, they — they were occupied.

And there wasn’t any question about it.

Then, the Court might want to consider whether they did but in any event, if it becomes crucial about the time 1845 when they came into the Union.

But the — the nine years period does nothing in international law to sustain such a short period as being sufficient to establish.

And the reason for that is dealt with and the authorities refer — refer to where the courts have reasoned this out.

They say, “After all, our country doesn’t look at all the statutes of another nation all the time and try to find out now with Russia.

I want to know why we happen to make that protest, and I examined the time and the history of it and found that Russia came to us and said, we’re having issue with this Ukase.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
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J. Lee Rankin:

We want your ships to obey it.

Will you please tell your people to obey this Ukase?”

And we proceeded at once to protest against it.

But you — under international law, nations are busy, and they can’t be expected to know every kind of statute that some country passes.

So, you’ve got to bring it to their attention.

After you bring it to their attention, you’ve got to occupy it and say “Now, if you — you can’t come in here.”

That’s the other element.

And the only cases that we’ve pointed out to you are several law in one we can find that the — roughly around 50 years and I think one, some 35 years that there was any — and — and there was real occupancy.

They had been occupying that area.

So, we don’t think that that claim had any standing in international law.

But it does have to be considered as to what was intended by Congress when it was said that if they proved that and that the Congress approved that statute at the time it entered the Union, then that was what they would mean by this law as being legal boundary.

And we think that would establish a legal boundary.

And they said, legal existing boundaries what they’re talking about and that was enough when they represented that if they didn’t do that, they wouldn’t get it, I think that should be the terms upon which it should be decided.

Charles E. Whittaker:

(Inaudible)

J. Lee Rankin:

Well, is — is your problem with regard to the coast guard line or coast and shore?

Charles E. Whittaker:

No.

As to the question, I can’t find that where the descriptions under this Louisiana (Inaudible) say including the Gulf of Mexico.

The forgers advised that Government including all islands, included in three leagues.

What does that mean?

That the scope or we — we have to fix with this, are we just to use that (Inaudible) with the shore?

Does it have to (Inaudible) with the coast?

I just don’t know — I think you mean we have — if we accept your view that it does not include a seaward boundary extending seaward of all (Inaudible) then have to examine where to begin to decide what islands are existing.

J. Lee Rankin:

Well, that is really simplified by the fact that we don’t have any issue about the islands being within the three leagues so we aren’t really contending about those islands.

You don’t have to really worry about it as a matter of fact.

But that may not answer your legal question as to the problem.

And we do have the problem in this regard that as to Louisiana, when it was admitted into the Union, the United States did refer to including all islands within the three leagues of the coast.

And when it admitted Louisiana or Mississippi and Alabama, it said, all — including all islands within six leagues of the shore so as to make it easy for us.

So, we — I’ll try to discuss it a little bit more in those two States.

Hugo L. Black:

Senator Holland.

Spessard L. Holland:

Mr. Justice Black, I so suggest to the Court.

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William O. Douglas:

Do you have a separate brief or just a joint brief?

Spessard L. Holland:

Sorry?

William O. Douglas:

Do you have a separate brief?

Spessard L. Holland:

Yes, sir.

Yes, sir, the white one, Your Honor.

William O. Douglas:

White one?

Spessard L. Holland:

Yes.

Yes, it’s on the brief of the State of Mississippi in our position to motion for judgment of amended complaint.

William O. Douglas:

Thank you.

Spessard L. Holland:

At the very beginning, although my remarks, of course, shall go strictly to State of Mississippi, I would like to call to the Court’s attention to a matter with reference to the State of Texas.

It was brought up here in discussion by the Solicitor General with reference to the Trist instruction.

The best evidence, of course, is his instruction of his — what his instructions were well, what he did.

And the resulting treaty did not begin at the mouth of the Rio Grande but began three leagues from land and read as follows citing the Court to page 102 of the Texas brief, “The boundary line between the two Republic shall commence in the Gulf of Mexico three leagues from land opposite the Rio Grande.”

This treaty, of course, is the supreme law of the land now, and it shows that there is a national boundary of three leagues in the Gulf.

And if the Court will look at the State Department’s own maps, which are reproduced on page 111 of Texas brief, this is called or referred to an international boundary by our own State Department.

Hugo L. Black:

Page what?

Spessard L. Holland:

Page 111.

Hugo L. Black:

111.

Spessard L. Holland:

111.

If the Court please, in the brief time that I have here, I want to try to specifically state the position of Mississippi in the 15 minutes time that I have here, and that which I left undone, my assistant who follows me, with 30 minutes, will try to be more clear on — than I am.

Hugo L. Black:

May I ask you one question?

Spessard L. Holland:

Yes, sir.

Hugo L. Black:

Is it your judgment that the rights of Mississippi in the United Stated (Inaudible) will determined on judicial (Inaudible) or the effect from the (Inaudible) is that we think Mississippi could offer some other way rather than by taking judicial (Inaudible)

Do you think the result depends on — over evidence?

Spessard L. Holland:

No, sir.

Frankly, I think the law is clear.

I think the Act of Admission of Mississippi is so clear and in — the Submerged Lands Act is so clear.

And it doesn’t necessitate in the Court.

And if it does —

Hugo L. Black:

I suppose someone disagreed with you in the proceeding clarity of the bill, and would you still have the same position that evidence would not (Inaudible)

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Spessard L. Holland:

Well, of course, if the Court calls for evidence, we would certainly —

Hugo L. Black:

I understood if the Court goes with you, do you think Mississippi needs to offer any other?

Spessard L. Holland:

No, sir.

I think it so plain that it really is not necessary.

Hugo L. Black:

Do you have any that you want to own?

Spessard L. Holland:

We will if the Court decides that we are so wrong in our taking if this is plain, we will settle, yes, sir.

Hugo L. Black:

What type of evidence?

Spessard L. Holland:

Sir?

Hugo L. Black:

What type of evidence?

Spessard L. Holland:

As to our boundary?

The coastline?

Felix Frankfurter:

Other than document?

Spessard L. Holland:

Sir?

Felix Frankfurter:

Other than document?

Spessard L. Holland:

Well, it probably could be confined to that, yes, sir.

I think —

Felix Frankfurter:

(Voice Overlap) —

Spessard L. Holland:

— the Act of Congress itself takes care of it, sir.

We stand foursquare on the provisions of the Constitution of the United States which grants to the Congress the exclusive right or power to dispose of territory and other property belonging to the United States.

And then, Article IV, Clause 2 of the Constitution of the United States which says that Acts enacted pursuant thereto are the supreme law of the land.

We submit that the issues presented by this litigation are clearcut, plain, unambiguous.

Certainly, it solely a domestic issue controlled entirely by the Constitution and laws of the United States, and all they’re talking about foreign policy and international law has no bearing whatsoever on the issues presented to this Court in this case.

We stand squarely on the sole authority of Congress to authorize formation of a State to determine the territory that shall compose such State and by setting forth its boundaries and the exclusive right and power of Congress to see to any State title to possession, control and use of any territory or property that might belong to the United States.

Taking our stand on that position, we go to the Enabling Act of Congress in 1817 when Mississippi — when you had the Mississippi territory and when it authorized the people of what constituted that part of Mississippi territory.

To form a State, Congress at that time clearly and unequivocally set forth what should constitute that State once they had written a constitution and decided to form a state and give it a name.

I certainly will not bother the Court with the over whole description of what shall constitutes State of Mississippi but going to that part which we are so directly concerned with here, “Thence due south to the Gulf of Mexico, thence westwardly, including all islands within six leagues of the shore to the most eastern junction of Pearl River with Lake Borgne, thence up said river to the 31st degree if north latitude, thence west along said degree of latitude to the Mississippi River and then north back to the point of beginning”.

That is the southern boundary line of the State of Mississippi as described in the Act — Enabling Act, which was so well pointed out yesterday by Governor Daniel following the process of how a State might be bought.

And there, they set out specifically what should constitute the State of Mississippi.

And in the use of six leagues, that was not pulled out of — in the Act.

The use of six leagues first appeared going way back to the time of George III of England when he divided the territory which then constituted Florida in the East and West Florida.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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Spessard L. Holland:

And I would like to point out to the Court here that that part of Alabama and Mississippi now, of course was at that time part of the East and West Florida.

West Florida came about a third of the way up into what now constitutes the State of Mississippi.

That was the first time we have any record of the term six leagues being used when it was ceded to the United States.

And then the Congress when it’s — when it authorized the formation of these States certainly didn’t reach up in full six leagues out of thin air.

They were using a description that was used at the time when it became a part of the United States of America.

And we’re authorizing the formation of two States, State of Mississippi first and then the State of Alabama and incorporating in that description the same identical description that the United States of America had when it acquired those lands.

And as this Court has so often held that certainly Congress can dispose of any lands that it had to any State that it wants to.

It could be a one State, one league and another 10 leagues.

If it owned it, then I don’t know of anything it was set — set such a conveyance aside.

Hugo L. Black:

Suppose it (Inaudible) Congress was exercising their power (Inaudible) would say that is to be that you have the statements in the Court and not set forth (Inaudible)

Spessard L. Holland:

Well, you mean — sir, I — I don’t get you on this question.

Hugo L. Black:

Another question is, suppose (Inaudible) exercising its undoubted power (Inaudible) sets forth those sufficient criteria to govern the Court’s legal determination, what would you say then?

Spessard L. Holland:

I don’t know, if the Court please.

Hugo L. Black:

You claim there is sufficient here.

Spessard L. Holland:

Yes.

Of course, I don’t know if I can answer that question.

I’m not trying to be facetious but I believe the advice on the Court and the Congress faced it to me like that, I’d say that’s your job and not ours, go back and say what you want us to give to.

William O. Douglas:

I suppose there’s no question of what the — this — this Court from the very beginning has been sitting on boundary questions.

Boundary questions of any States are — are reports of the bill of boundary decisions.

Spessard L. Holland:

Yes, sir.

I understand that.

William O. Douglas:

Do you think they — this case falls within that category?

Spessard L. Holland:

I think the boundary in the case of the State of Mississippi clearly define, Your Honor.

And I think the Submerged Lands Act doesn’t beg of any mysterious argument or any baffling definition of what boundary meant or what coastline meant because the Congress in the enactment of the Submerged Lands Act specifically said what they meant from the (Inaudible).

Therefore, it doesn’t beg of any.

Where do you find that?

Spessard L. Holland:

Sir?

In the Submerged Lands Act when it sets out what boundary shall be.

Navigable — what — what navigable water shall mean, such in be there what the term “boundaries” mean.

They — they are plain.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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Spessard L. Holland:

It’s — it’s a wonderfully drafted bill in clear and unmistakable language, as I see it, as to what the Congress meant by the enactment of the Submerged Lands Act.

And I would like to point out to the Court that in the description of the State of Mississippi as set out in the Enabling Act in 1817, that if the same identical description that we have followed in our successive constitution.

It was set out verbatim in the Constitution of 1817 that admitted us into the Union.

It was referred to in the Constitution of 1832 and in 1869.

When we were permitted to come back into the Union, we again picked it up and readopted it and it is now set forth in full in our present constitution of 1819.

I’d like to also point out that in this reference to six leagues, the Congress, in authorizing the formation of the State of Mississippi when they use six leagues by virtue of it having been six leagues when the U.S. Government acquired it, they could’ve said three and a half or four leagues and included this very change of others that we’re talking about here right now.

Potter Stewart:

Is your point that there are no islands beyond four leagues?

Spessard L. Holland:

No, sir.

Potter Stewart:

So, there is no point in saying —

Spessard L. Holland:

(Voice Overlap) before (Inaudible)

Potter Stewart:

That’s not before.

Spessard L. Holland:

— which is only about 10 miles, sir, from the land which having about ten and a half from the seaward side.

So, as they said four leagues, it would’ve incorporated those islands.

Potter Stewart:

Is all of the present State of Mississippi, was that all West Florida?

Spessard L. Holland:

The lower part here was —

Potter Stewart:

Any other —

Spessard L. Holland:

— rather, it’s a long — here, somewhere in the — the West Florida is incorporated all that the gulf coast (Inaudible)

Potter Stewart:

All the gulf coast of Mississippi and —

Spessard L. Holland:

Of Alabama and Mississippi on over through the Mississippi River.

Potter Stewart:

None of it was in the Louisiana purchase of, what is today, Mississippi?

Spessard L. Holland:

Not —

Potter Stewart:

That’s what we thought.

Spessard L. Holland:

I failed to see anything confusing about the description of the State of Mississippi as the Solicitor wants to confine us to — to just those islands there and say that that’s all we’ve got, nothing between.

It seems to me like — let me put a country lawyers view on it, that when the United States Government said, “We had all islands within six leagues, six leagues that they had acquired,” that seems to me like — just like conveying a piece of property 200 feet long, 100 feet wide including all buildings and other things located thereon certainly, the purchaser is not restricted to what might be located within the lands that are conveyed to him.

He just makes the description.

Charles E. Whittaker:

(Inaudible)

Spessard L. Holland:

Sir?

Charles E. Whittaker:

(Inaudible)

Spessard L. Holland:

Because that is the (Inaudible) in here that referred to as Mississippi South inland waters.

It doesn’t conceive that.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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Charles E. Whittaker:

(Inaudible) and that landward is in the water or do you claim that (Inaudible)

Spessard L. Holland:

No.

Charles E. Whittaker:

I beg your pardon?

Spessard L. Holland:

No.

Charles E. Whittaker:

(Voice Overlap) —

Spessard L. Holland:

We claim it under the — we claim it under the right, under the very description that — that describes the State of Mississippi when it was authorized to form a State, it’s also inland water actually at Mississippi’s sound and not Gulf of Mexico.

Of course, it joins up with it and the inland waters do not meet the open sea and as you get on further south of these islands.

Charles E. Whittaker:

That’s why (Inaudible) and they are inland shoreward of the islands and therefore inland waters (Inaudible) including all islands.

Spessard L. Holland:

Well, of course, the — the original act, sir, brought it down to — to where the land meets the water.

Charles E. Whittaker:

I construe it to be between the gulfs.

Spessard L. Holland:

Yes, sir.

That was (Inaudible)

That’s what they referred to is the — but I submit that that land in between the islands and the land of State of Mississippi, that — that is part of the State of Mississippi.

It’s inland waters, it’s Mississippi South.

The Government concedes that, that our coast line is the seaward side of (Inaudible)

They concede that in their brief.

Charles E. Whittaker:

(Inaudible)

Spessard L. Holland:

That — that is our coastline, the seaward side of those islands.

Yes, sir.

They concede that, sir.

Therefore, I would point out to the Court in the very few minutes that I have left here that although Mississippi was not departed to the California and Texas cases, the Court held that the States own — own it to the coast but further held that only the Congress could dispose of submerged lands.

And I don’t think it would be disputed or argued that the Submerged Lands Act was the result of the decision of this Honorable Court in the California and Texas cases.

That’s all it brought it in to be.

Now, I would like to call the Court’s specific attention to the fact that the only time the word “leagues” are used in the Submerged Lands Act is when in dealing with the States bordering on the Gulf of Mexico.

The others, it border on the two oceans, it says marks.

And those bordering only Great Lakes, it says the international boundary.

But, when it comes down to the Gulf of Mexico, what does it say in — in describing the term “boundaries”?

We don’t have to go to the dictionary for the purposes of this Act.

All we have to do is read the Act.

And it says but in no event shall the term “boundaries” or term “lands beneath navigable waters” being interpreted as extending from the coastline more than three geographical miles west in the Atlantic or the Pacific Ocean or three marine leagues until the Gulf of Mexico.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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Spessard L. Holland:

And I submit that that it wasn’t in either gesture on the part of Congress when they recognized three marine leagues into the Gulf of Mexico and if the distinguished Solicitor’s argument is to be accepted by this Court, he is asking this Court to write out of this Act those specific provisions, and the Governor of Texas so ignored hereon yesterday.

That very thing was attempted to be done when this bill was under consideration and twice the Senate refused to do it and wants the House of Representative refused to do it.

I call the Court’s attention to the entire spreading into Section 4 of this Act it so — which says, “Nothing in this Section is to be construed as questioning or in any manner.

They’re just seeing the existence of any state seaward boundary beyond three geographical miles if it was so provided by its constitutional laws prior to or at the time such State became a member of the Union or if it has been heretofore approved by Congress.”

And then following up, the Submerged Lands Act, we got the Continental Shelf Lands Act.

Its been argued here that the — the Government claim has no jurisdiction beyond these three miles.

And yet in Section 4 of the Submerged Lands Act, we find the United States Government say that the Constitution, laws and civil and political jurisdiction of the U.S. are hereby extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islands and fixed structures which maybe erected thereon to the same extent as if the outer Continental Shelf where an area of exclusive federal jurisdiction located within a State.

And I submit, if Your Honor please, that with all deference, the letters from Secretary of State, with all deference to what somebody’s foreign policy maybe at any particular time in the history of this nation, never has this Court held that foreign policy or letters of the Secretary of State can repeal a specific Act of Congress.

And that’s what is almost attempted to prevail upon this Court to have done.

That has never been the law, and I hope never is.

The Act of Congress in dealing with these lands on the discussion is certainly the supreme law of this land and the one that we stand on.

Now, I want to go back and repeat and then I’m through.

We stand on our own Constitution of the United States of America.

We stand on the authority of Congress to convey that which belongs to the United States of America.

We stand on interpretation of the specific provisions of the Submerged Lands Act.

It’s not — to me, it’s not complicated.

It boils down, as one of the justices asked here this morning, it simply boils down to what was the — what was the boundary line of a State and what — and what do you get from there under the terms of the Submerged Lands Act.

We submit that under the California case, our coastline would give these islands.

We accept that of course.

And we submit that under this, that it is much as we will convey six leagues that we are entitled to — to go all out the three leagues as conveyed by this Submerged Lands Act and what true of us is true of all the other States.

And I’d like to call the Court’s attention one more time that the only time the word “league” is used in this Act is in dealing with the State’s bordering on the Gulf of Mexico.

In dealing with the others, it says “miles”.

I thank the Court for the time you’ve given me.